Identifier
Created
Classification
Origin
04CARACAS2441
2004-08-02 15:07:00
CONFIDENTIAL
Embassy Caracas
Cable title:  

VENEZUELAN TRIAL PROCEDURES AND POLITICAL JUSTICE

Tags:  PHUM PGOV KJUS VE 
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C O N F I D E N T I A L CARACAS 002441 

SIPDIS


NSC FOR CBARTON
HQ USSOUTHCOM ALSO FOR POLAD
USAID DCHA/OTI FOR RPORTER

E.O. 12958: DECL: 05/25/2014
TAGS: PHUM PGOV KJUS VE
SUBJECT: VENEZUELAN TRIAL PROCEDURES AND POLITICAL JUSTICE


Classified By: A/DCM ABELARDO A. ARIAS FOR REASONS 1.5 (d)

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Summary
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C O N F I D E N T I A L CARACAS 002441

SIPDIS


NSC FOR CBARTON
HQ USSOUTHCOM ALSO FOR POLAD
USAID DCHA/OTI FOR RPORTER

E.O. 12958: DECL: 05/25/2014
TAGS: PHUM PGOV KJUS VE
SUBJECT: VENEZUELAN TRIAL PROCEDURES AND POLITICAL JUSTICE


Classified By: A/DCM ABELARDO A. ARIAS FOR REASONS 1.5 (d)

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Summary
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1. (U) Court cases against various opponents of President
Hugo Chavez are at different stages in the judicial process.
The case of Baruta Mayor Henrique Capriles, though he has
been in custody for more than two months, is in its initial
stages, while the case of National Guard Gen. Carlos Alfonzo
Martinez is at trial. This cable gives a basic overview of
Venezuela's trial system, highlighted with the status of
several political cases now before the courts. End Summary.

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Adversarial System
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2. (U) The Venezuelan penal system changed radically in 1998
when the Organic Penal Procedures Code (COPP) came into
effect. It changed Venezuela's justice system from an
accusatorial to an adversarial system. This required the
creation of a new system of public prosecutors and changed
the role of the judge as well. Under the COPP, the judge
handles procedural issues and, alone or with the
participation of lay judges, decides the case. Trials are
public, and defendants are protected by the presumption of
innocence and the right to be free while on trial, under most
circumstances.

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Prosecutors
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3. (C) In Venezuela's justice system prosecutors begin
investigations primarily based on complaints submitted by
citizens. For complaints submitted during regular hours, the
prosecutor to handle the case is chosen by lot. Complaints
entered after hours are taken by the duty prosecutor (The
lottery system was implemented with the COPP to avoid venue
shopping and is similarly used in the assignment of cases to
control and trial judges.) According to Juan Martin
Echeverria, defense lawyer in the Capriles and SUMATE cases,
there is a group of seven prosecutors given all the
political cases in which the GoV had an interest, in
violation of the case distribution system which is supposed
to operate in the prosecutors office, as in the courts. They
included Danilo Anderson, prosecutor in the Capriles case,
Luisa Ortega, prosecutor in the SUMATE case, and Jose Benigno

Rojas, responsible for the accusation of bribery in the
Tachira 9 case. Martin argued that these prosecutors act
under strict orders from Attorney General Isaias Rodriguez,
and not with the independence required by the COPP to search
for evidence of innocence as well as guilt, and make a good
faith effort to uncover the truth.


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Imputado
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4. (U) The first stage in a trial in Venezuela is the public
prosecutor's investigation of the alleged crime. During the
preliminary investigation of a crime, the prosecutor's office
acts without judicial supervision. When the prosecutor
decides to begin a formal investigation of criminal
responsibility against an individual, that individual is
advised that he or she is the subject of an investigation
(imputado). At this time, the prosecutor may request that a
judge order the suspect be detained if all three of the
following conditions are met: 1) there is sufficient evidence
that a serious crime has been committed; 2) there is
sufficient evidence that the suspect may have committed the
crime; 3) there is sufficient reason to believe the suspect
may flee, or try to interfere with the investigation. The
prosecutor in Baruta Mayor Henrique Capriles' case has
successfully argued these points to keep him in custody since

May 11.

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Pre-trial Detention
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5. (C) The COPP states that pre-trial detention should be an
exception, but one half of all Venezuelan prisoners have not
yet been convicted of any crime. According to Caracas Appeals
Court Judge Cesar Sanchez, there is resistance among many
control judges to accept this aspect of the COPP (NOTE:
Control judges oversee procedures in cases prior to the trial
itself. End note.) Sanchez told PolOff April 26 that many
control judges ignore the rules in the COPP, and their
decisions must be contested in Appeals Court to be
overturned.
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Assignment of Cases
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6. (C) The COPP states that when the prosecutor's office
brings a case forth, the selection of the control judge is by
lot. If the prosecutor brings his case forth between 7 p.m.
and 7 a.m., however, the case goes to the control judge on
duty. Important political cases such as the case, against
Baruta Mayor Capriles and the case of nine opposition leaders
in Tachira state, being tried for civil rebellion for alleged
deeds in April 2002, have been brought to the courts after
regular hours, according to Appeals Court Judge Jesus
Ollarves, whose court twice ruled the practice of after hours
assignment was improper. (Note: The Supreme Court overruled
Ollarves' court on both occasions.) Ollarves told PolOff June
21, that prosecutors have taken advantage of this system to
make sure high profile political cases go to judges who are
allies of the GOV.

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Long Detentions
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7. (U) Once a prosecutor has opened an investigation against
an individual he has 45 days, if the suspect is jailed, to
decide whether to make a formal accusation before a judge (if
the suspect is not jailed the period is ten months). Once the
formal accusation is filed with the court, a trial judge is
selected in the same manner as the control judge. If the
suspect is under detention, the judge must have a hearing to
determine if the detention should continue. This is the type
of hearing that was scheduled for Capriles July 26, though it
was canceled after an Appeals Court sent the case back to a
new control judge.


8. (U) Suspects detained throughout their trial can be in
jail for years due to the inefficiency of the judicial
system. Hearings are frequently suspended because witnesses
or lawyers do not come, and prisoners frequently miss
hearings because the system of transportation for prisoners
is inefficient and corrupt. National Guard Gen. Carlos
Alfonzo Martinez was ordered from prison to house arrest July
20 after being in custody since December, 2002. His trial
began on July 19. The Tachira 9 have been in prison awaiting
the beginning of their trial for civil rebellion for over a
year. Their trial began July 26.

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Public Trials
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9. (U) The COPP guarantees suspects the right to a public
trial, except when a public trial: 1) would violate the right
to privacy of one of the actors; 2) would endanger national
security or public morals; 3) would reveal commercial or
industrial secrets; 4) when a minor is testifying. The judge
in the case of Gen. Alfonzo closed the trial to the press and
public on July 19, for reasons of national security. The
defense unsuccessfully objected that all the evidence had
already been discussed publicly in a Supreme Court hearing.

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Judges and Escabinos
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10. (U) Trial judges in Venezuela render decisions as well
as ensure proper trial procedures are followed. In cases with
a maximum penalty of less than four years, the judge decides
on guilt or innocence, and sentences the defendant. In cases
with a maximum sentence of more than four years, the judge
presides over a mixed court, consisting of himself and two
lay judges (escabinos). The two escabinos have the same right
as the judge to question witnesses. Decisions can be made by
a two-thirds majority. Delays in identifying escabinos cause
subsequent delays in trials. The accused can request a trial
without them after four failed attempts to form a mixed
court. An accusation of bribery against a defense lawyer and
the escabinos in the trial of the Tachira 9 caused the latest
delay in the case.

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Comment
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11. (C) The Venezuelan judicial system is a case study on
the limits of progressive law. The previous division of the
justice system between the AD and COPEI provided for a
balance of power, but did not strengthen the idea of judicial
independence. The Venezuelan Constitution and the COPP take
very progressive views on human rights, and the rights of the
accused. In practice, however, respect for these rights falls
short. Chavez and his loyalists control the prosecutors
office and much of the court system. The failure to insulate
prosecutors and judges from outside pressure and the
excessive authority exercised by a politically partial
Supreme Court over the entire court system, have made it more
possible for criminal persecution in Venezuela to be the
continuation of politics by other means.
Shapiro


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2004CARACA02441 - CONFIDENTIAL